Supreme Court rules that Endangered Species Act trumps 1872 Mining Law

�� Supreme Court Denies Miners’ Challenge to Ruling that Endangered Species Act Trumps 1872 Mining Act

�� Ruling Strikes Down U.S. Forest Service Approvals of Mining P

OPINION

W. FLETCHER, Circuit Judge: We consider whether the U.S. Forest Service must consult with appropriate federal wildlife agencies under Section 7 of KARUK TRIBE OF CALIFORNIA v. USFS 6071 the Endangered Species Act (“ESA”) before allowing mining activities to proceed under a Notice of Intent (“NOI”) in critical habitat of a listed species. The ESA requires consultation with the Fish and Wildlife Service or the NOAA Fisheries Service for any “agency action” that “may affect” a listed species or its critical habitat. 16 U.S.C. § 1536(a)(2); 50 C.F.R. § 402.14(a). There are two substantive questions before us.

The first is whether the Forest Service’s approval of four NOIs to conduct mining in the Klamath National Forest is “agency action” within the meaning of Section 7. Under our established case law, there is “agency action” whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. The record in this case shows that Forest Service District Rangers made affirmative, discretionary decisions about whether, and under what conditions, to allow mining to proceed under the NOIs.

The second is whether the approved mining activities “may affect” a listed species or its critical habitat. Forest Serviceregulations require a NOI for all proposed mining activities that “might cause” disturbance of surface resources, which include fisheries and wildlife habitat. 36 C.F.R. §§ 228.4(a), 228.8(e). In this case, the Forest Service approved mining activities in and along the Klamath River, which is critical habitat for threatened coho salmon. The record shows that the mining activities approved under NOIs satisfy the “may affect” standard.
We therefore hold that the Forest Service violated the ESA by not consulting with the appropriate wildlife agencies before approving NOIs to conduct mining activities in coho salmon critical habitat within the Klamath National Forest.....

Conclusion

[24] There is “agency action” under Section 7 of the ESA whenever an agency makes an affirmative, discretionary decision about whether, or under what conditions, to allow private activity to proceed. In approving the NOIs challenged in this case, the Forest Service made affirmative, discretionary decisions to authorize mining activities under specified protective criteria. By definition, mining activities requiring a NOI are those that “might cause” disturbance of surface resources, including underwater fisheries habitat. The Forest Service does not dispute that the mining activities it approved in this case “may affect” critical habitat of coho salmon in the Klamath River system. The Forest Service therefore had a duty under Section 7 of the ESA to consult with the relevant wildlife agencies before approving the NOIs.

[25] We reverse the district court’s denial of summary judgment on the Karuk Tribe’s ESA claim and remand forentry of judgment in favor of the Tribe.

REVERSED and REMANDED

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